The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-04-28
THE COURTS.
SUPREME COURT.

The appellant was incorporated June
s, 1874, and appellee March 20, 1884.
This action involves contest between
the parties as to the right to use Houston
and Weatherford streets and Jennings
avenue in Fort Worth for their roads.
Appellant basis its claim on city ordi-
nance No. 60, approved July 10, 1887.
This ordinance in section l substan-
TALLY grants appellant the right to con-
struct, maintain, etc. zone or more lines
of street railway" son either of the fol-
lowing named streets and their extensions;
to wit: Belknap and Weatherford streets
running east, and Weatherford and Hous-
ton, Main and Rush streets and Jennings
avenue running north and SOUTH" and
such other streets as may be designated
by ordinance, ETC.; provided, said com
pany shall construct sat least one line OF
railway on one of the above named
streets" running from the public square
to the Texas a. Pacific railroad depot
within eighteen months, etc.
Section 2-That the city council
reserve the right to de.
terniue when the requirements OF
traffic necessitate any further track than
the one selected and built by appellant in
pursuance of the rights granted it, and
shall notify appellant of their judgment,
and specify the street, and if the notice
is not completed within twelve months,
then the rights to those streets shall be
forfeited, Appellant selected Main street
on which to build railway to depot.
Appellee claims the right to use the
streets in controversy under several ordi-
nances, one of whi1h in terms gives the
right to construct railway down the cen
ter of Houston street. The contention
arose in this way: Appellee was construct
ing railway in pursuance to ordinance
granting the right, and was within 500
feet of Houston street, and that appellant,
on August 10, 1884, set to work to dig up
nine blocks down the center of Houston
street. Appellee was acting under legal
advice, and appellant, in doing work on
Houston street, was acting under ordi
nance No. 60, above cited. This action
was brought, under agreement, to settle
rights of the parties, and was finally dis.
posed of May 16, 1885, judgment being
entered perpetually enjoining appellant
from constructing a railway on any of the
streets to which right is asserted by ap
pellee, and thus appeal was taken.
The question is did ordinance No. 60
passed in 1874, confer right on appel.
liant superior to the right conferred or
appellee by its ordinance, or is the right
conferred by ordinance No. 60 lost?
The question refers only to that part OF
Houston street which the ordinance gives
to appellee.
The solution of this question involves
two inquiries:
First-What rights did appellant take
under ordinance No. 60?
Second-If it acquired the right to use
either or all of the streets mentioned, did
it acquire the right to use any particular
part of these streets before an actual ap-
By its acts of incorporation appellee
acquired merely corporate existence; it
could give no right to use street, Cor
this right could only be acquired by the
consent of the city of Fort Worth.
Appellants claim that they have the
right to run on all the streets named in
ordinance No. co. Appellees claim that
only acquired the right to
build one line of road east and west, and
one north and south, and the right to the
latter attaches to the street selected main
street, aud not to Houston street, par
allel with 1t, and it has forfeited the right
to streets east and west.
In order to inter pref the ordinance all
its words must be considered. In section
it says tracks may be laid ION either"
of the named streets. "Either"
does not mean all, but one
or the other of two or more, and the only
fair construction to put on the section is
that zone or more" lines may be con
structed on one or the other of the streets
named, and not on all.
The provlso to section l evidently
shows that more than one line might be
constructed on the same street. The first
section makes whatever grant is made,
and the right to operate one or more
lines on every street named in it is not
Section assumes that one of
the streets would be selected, and this as
only arises because it is made
necessary by the ordinance. The words
Sin the first instance" in this section, re-
fer to the line on Main street, and give
the city the right to select line 'east
aud west" in addition to the one north
aud south. No construction of the second
section gives appellant the right to oper
ate lines on each and all the streets
named, and even if this construction is
wrong, there can be no doubt that the
city has the power to make the grant
made, and if the city deemed it necessary
both companies could operate any one of
the streets, unless one has prior grant,
In this case there was no express grant
to appellant as to Houston street, while
appellee had grant of the center of the
street, and therefore has right to the use
of SO much of that street as it asserts a
right to, and the judgment of the court
Is 'rrect and must be affirmed.
Fort Worth Street Railway company VS..
Rosedale Street Railway company, from
rarrant county. Opinion by Stayton, A.
j. This was to decide motion to show
cause why appellant should not be pun
1shed for contempt arising out of the
foregoing case.
When the parties to this case agreed to
submit the matter there was an applica-
ton by each party for an Injunction, and
appellee instituted suit according to
'greement September 8, 1884. On Sep
TENDER II, 1884, applications for in
functions, made by both companies, we're
pending, and on that day writ was is
sued restraining appellee from doing any
more work on Houston street. In this
restraining writ the court stated that a
full hearing of the case was postponed
until the 26th inst..'' and that the res